Avoiding the Entrapment Defense in a Post-9/11 World
By David J. Gottfried, J.D.
Michael, a 19-year-old college student, was born and raised in middle America. According to his roommate, Michael has developed a peculiar fascination, almost an obsession, with al Qaeda and its cause. The roommate watches over the next several months as Michael makes numerous comments indicating support for violence against the United States and, in particular, its military forces. This concern increases when he sees an order Michael placed on the Internet for a how-to guide to building a homemade explosive device. Unnerved with Michael’s recent attraction to al Qaeda and support for the use of violence, the roommate approaches the local police department to share his observations.
The Joint Terrorism Task Force (JTTF) begins looking at open-source information about Michael. A 20-year-old JTTF informant makes contact with Michael at a fraternity party, and the two men engage in a conversation about the need to teach America another lesson. Michael proudly announces that he willingly would become a martyr in the name of jihad, but that he lacks money with which to pull off a “glorious” event. A few weeks later, the informant tells Michael that, through his father, he could come up with $50,000 and that he has a source willing to provide enough materials to “take out a city block.” Michael’s face lights up, and they agree to make a plan.
This fictional scenario bears a striking resemblance to an emerging trend in the United States. Young people, some still in their teenage years and often from upper-middle-class families, have developed a fervor for anti-American sentiment. Since 9/11, law enforcement agencies have identified many such cases, causing a chilling revelation: If these cases represent the ones authorities have become aware of, how many remain undetected?
Given this trend, law enforcement agencies face a difficult task. In the aftermath of 9/11, it no longer proves sufficient to solve crimes after people have committed them. Rather, a top priority of law enforcement is preventing another terrorist attack against U.S. interests. The American people expect federal, state, and local law enforcement officers to proactively prevent another terrorist attack, and even one failure is unacceptable. Law enforcement officials cannot afford to wait for a terrorist plot to mature before they break it up. A delay could enable an unidentified plotter to launch an attack. In other words, law enforcement must, in a controlled manner, divert someone determined to harm the United States and its people into a plot bound to fail from the outset, instead of one that might succeed.
This approach of proactively identifying criminal activity in its infancy raises unique concerns. Can law enforcement officials exploit an individual’s mere desire to kill tens of thousands of innocent people and even facilitate the commission of the crime right up until the last second, controlling the unfolding events to ensure that the perpetrators remain unaware they are dealing with undercover agents? Where is the line between an individual’s thoughts and desires and criminal activity?
Assistant General Counsel Gottfried is an instructor at the FBI Academy
The answer to these questions requires an understanding of an important legal principle—entrapment. Prosecutors will attempt to refute claims of entrapment in the courtroom, but, actually, cases are won or lost in the planning stages of the investigation. In other words, law enforcement officers play a critical role in conducting an investigation in a manner that prevents the successful assertion of entrapment. The consequence of a successful entrapment defense—the acquittal of an otherwise guilty defendant—is unacceptable. Understanding the contours of the entrapment defense and factoring this into the planning phases of an investigation can make the difference between a successful attack on the government’s case and a guilty plea.
Certain investigative techniques used by law enforcement raise the likelihood of the assertion of an entrapment defense. Perhaps, the highest probability of an entrapment defense arises in undercover operations. Law enforcement agencies need not shy away from using undercover operations, but they must structure them carefully. Terrorist recruits susceptible to undercover agents also will be susceptible to real terrorists. This shows the importance of undercover agents recruiting these individuals first. Executed properly, undercover operations—even those in which law enforcement provides both the means and the opportunity for an individual to succeed in committing a “terrorist act”—are entrapment proof. This article examines the history of the concept of entrapment and demonstrates the importance of structuring an investigation in anticipation of an entrapment defense.
In its most basic form, entrapment occurs when government authorities induce persons to commit a crime they were not predisposed to commit. A successful claim of entrapment in the legal system can result in defendants’ acquittal regardless of whether they actually committed the alleged crime. More precisely, to successfully assert an entrapment defense in federal and most state courts, defendants must show by a preponderance of the evidence (hence the characterization of entrapment as an “affirmative” defense) that officers induced them to commit the crime.1 Assuming defendants make their showing of inducement, the burden of proof moves to the prosecution, which must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.2 Thus, the entrapment defense can fail in one of two ways: 1) the defendant cannot show inducement; or 2) despite a showing of inducement, the government can prove predisposition.3
While federal and most state courts follow the definition described above (also known as the “subjective” test), a few states still follow the “objective” test, which focuses solely on the government’s actions and the degree of inducement—in other words, how coercive and persuasive the authorities were.4 The key to the objective test is whether the degree of governmental persuasion would have induced an innocent person to engage in the criminal activity.
For example, in the 1973 case of People of the State of Michigan v. Turner, the defendant had a 3-year friendship with an undercover agent who served as a part-time sheriff’s deputy and a part-time truck driver.5 The defendant responded to the undercover officer’s concern about falling asleep at the wheel by providing caffeine pills. Believing that Turner’s access to caffeine pills meant he also had access to narcotics, the agent concocted a story that his girlfriend, a drug addict, would break off their relationship unless he provided her with some heroin. After repeated refusals, Turner provided $20 worth of heroin and $17 worth of marijuana. Turner refused to provide more, but offered to bring the agent to his source. The Michigan Supreme Court overturned Turner’s 24- to 40-year sentence for possession and sale of heroin and marijuana, finding law enforcement’s actions so reprehensible that a conviction should not be tolerated.6
In 1932, the Supreme Court first recognized the defense of entrapment in Sorrells v. United States, a prohibition-era case.7 A prohibition agent learned from informants that Sorrells, a factory worker, had a reputation as a “rumrunner.” The agent and three acquaintances of Sorrells spent 90 minutes reminiscing with them about World War I and then asked him “if he would be so kind as to get a fellow soldier some liquor.” Initially, Sorrells refused, but later provided a half-gallon bottle of whiskey in exchange for $5. He then was arrested for violating the National Prohibition Act.
In his defense, Sorrells said he told the agent several times that he “did not fool with whiskey” before finally giving in and producing the bottle of liquor. In the majority opinion, Justice Hughes wrote, “it is clear that the evidence was sufficient to warrant a finding that the act for which defendant was prosecuted was instigated by the prohibition agent, that it was the creature of his purpose, that defendant had no previous predisposition to commit it but was an industrious, law-abiding citizen, and that the agent lured defendant, otherwise innocent, to its commission by repeated and persistent solicitation in which he succeeded by taking advantage of the sentiment aroused by reminiscences of their experiences in arms in the World War.”8 As a result, the entrapment defense was born.
The first prong of the entrapment defense requires a demonstration of inducement by law enforcement. A successful showing of inducement generally requires more than merely establishing that an officer approached and requested a defendant to engage in criminal conduct. While evidence that the officer engaged in persuasion, threats, coercive tactics, harassment, or pleas based on sympathy or friendship may prove sufficient in showing inducement, most courts also require the defendant to demonstrate that law enforcement’s actions led an otherwise innocent person to commit the crime.9
Inducement generally can be categorized in one of two ways. The first involves a situation in which a law enforcement officer makes an essential contribution to the commission of the crime. The second type of inducement involves repeated requests, sometimes made in an atmosphere of camaraderie, that even may include coercion to induce criminal behavior.
In 1973, the Supreme Court permitted the government to participate in the illegal actions in United States v. Russell.10 Joe Shapiro, an undercover agent for what later would become the Drug Enforcement Agency, was assigned to locate an illegal methamphetamine production laboratory in Washington state. His investigation led him to Richard Russell and John and Patrick Connolly, the laboratory’s proprietors. Shapiro went to Russell’s home where he learned that the men had been making methamphetamines for six months and already had produced three pounds of it. The laboratory recently had been dormant because, as Russell told the undercover agent, he had difficulty procuring phenyl-2-propanone (P2P), a legal but rare and essential ingredient in methamphetamines. Shapiro said he could procure P2P and would do so in exchange for half of the laboratory’s production. Shapiro provided P2P and, later, received his share of the finished product. At trial, defendants asserted the entrapment defense, calling attention to the fact that Shapiro affirmatively had participated in the plot, even going so far as to point out that without Shapiro’s inducement and contribution of P2P, no illegal drugs could have been produced.
The Supreme Court ruled that entrapment had not occurred, noting that neither the fact of deceit (through the undercover operation) nor the fact that government officers afforded an opportunity or facilitated the commission of the offense would defeat the prosecution.11 The Court stated that only when government deception actually implants criminal design in the mind of a defendant does the defense of entrapment come into play.12 Simply put, the entrapment defense prohibits law enforcement officers from instigating criminal acts by otherwise innocent persons to lure them to commit crimes and then punish them for the acts.13
In 1992, the Supreme Court further examined this issue in Jacobson v. United States.14 In this case, a middle-aged Nebraska farmer with no criminal record lawfully ordered from an adult bookstore two magazines containing photographs of naked teenage boys. In 1984, Congress passed the Child Protection Act of 1984 (CPA), which made it illegal to receive such materials through the mail. The U.S. Postal Service obtained Jacobson’s name from a mailing list seized at the adult bookstore and, in January 1985, initiated an undercover operation targeting him. Government agents, using fictitious organizations and a contrived pen pal, contacted Jacobson by mail, making available the opportunity to purchase additional child pornography. The communications also contained disparaging remarks about the legitimacy and constitutionality of efforts made by Congress to restrict the availability of sexually explicit material and, ultimately, offered Jacobson the opportunity to order illegal child pornography. More than two years after the initial contact, government agents sent Jacobson a brochure advertising photographs of two teenage boys engaged in sexual activity. In response to this solicitation, Jacobson placed an order. After government agents effectuated the delivery of Jacobson’s order, law enforcement officers searched his house, revealing only the magazine the government provided and two other magazines lawfully acquired before the CPA was passed.
Jacobson was charged with receiving child pornography through the mail in violation of federal law.15 He was convicted, but the Supreme Court, ultimately, overturned the conviction based on Jacobson’s claim of entrapment. The Supreme Court held that “law enforcement officers may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute.”16
The inducement in Jacobson in and of itself did not perfect the successful entrapment defense. The prosecution still had an opportunity to prove that the defendant was predisposed to commit the crime. However, this example clearly demonstrates that the more forceful the inducement, the more critical the showing of predisposition becomes.
While inducement focuses on the conduct of law enforcement, predisposition focuses on the defendant’s actions and statements. Predisposition is a willingness to commit a crime prior to the introduction of any law enforcement inducement. It often is demonstrated by showing a reasonable indication that the defendant has engaged or intends to engage in criminal activity.17 However, predisposition also can be shown through an overall eagerness to participate in general criminal activity, or a quick response to law enforcement’s inducement. In other words, while the predisposition must exist before law enforcement’s inducement, it may be proved by actions or events in response to inducement.
As with evidence in general, the more indicia of predisposition, the more entrapment-proof the case will be. Arguably, the single best indicia of predisposition is when the defendant has suggested the crime (i.e., a complete absence of any inducement). Other common factors include:
- prior, recent convictions/arrests for similar conduct;
- having (or bragging about) experience or expertise in the suggested illegal activity;
- associating with or expressing sympathies for terrorists/criminals;
- expecting to profit from the crime (either monetarily or through an increase in perceived status); and
- a quick response to the undercover agent’s inducement offer and the absence of any reluctance at either the undercover agent’s mere suggestion to commit the crime or the proposal of other nonviolent alternatives.
For example, in the 2011 case of U.S. v. Lewis, the defendant was convicted of conspiring to possess cocaine with intent to distribute and carrying and possessing a firearm during and in relation to a drug trafficking offense.18 In response to Lewis’ assertion of the entrapment defense, the court allowed the prosecution to introduce prior convictions for felonies in possession of a firearm and theft, holding that evidence of previous criminal acts is admissible to prove predisposition “because in such a case the defendant’s predisposition to commit the charged crime is legitimately at issue.19 To be admissible, however, this evidence must show an act that is similar enough and close enough in time to be relevant to the matter at issue.”20
Law enforcement officers play a critical role in preventing a successful entrapment defense. Recognizing that this role starts at the inception of the operation, not in the courtroom, is essential. Using the fictitious example at the beginning of this article, in Michael’s case, law enforcement officers could initiate an undercover operation. As part of the operation, the officers may develop a plan, perhaps, created in consultation with prosecutors. This plan could identify both the inducements to be used, as well as how to demonstrate predisposition. In addition, law enforcement officers and attorneys working together could identify specific places during the operation where predisposition may be documented and used in court later.
Finally, law enforcement officers should document each instance where a defendant demonstrates indicia of predisposition. In Michael’s case, law enforcement officers could document his conversations with the source, specifically the discussions regarding the need to teach America another lesson, indicating that he willingly would become a martyr in the name of jihad and that he lacked money with which to pull off such an event. Also, the undercover agent may strengthen predisposition by suggesting that Michael use alternatives to violence and reminding him that thousands of innocent women and children would be killed. If these suggestions failed to sway Michael from his stated goal, it should be documented and used to further demonstrate predisposition. Use of video and audio devices to record communications with undercover officers and cooperating witnesses and to capture observations of the defendant also warrant consideration. It is one thing for a law enforcement officer to testify that the subject was eager to engage in the criminal activity; it is another to hear the eagerness in the subject’s voice and see it in the individual’s expressions.
In the wake of 9/11, it no longer is enough for law enforcement officers to solve crimes after their commission. Investigative activity that preempts crimes, particularly terrorism in a post-9/11 world, has become commonplace. To help ensure a successful prosecution, law enforcement officers need to recognize the risks associated with proactive investigations and anticipate affirmative defenses, such as entrapment, as they initiate undercover operations. With proper planning and execution, law enforcement officers can use all available tools to prevent another terrorist attack and to help effectively overcome an entrapment defense.
“This approach of proactively identifying criminal activity in its infancy raises unique concerns.”
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 U.S. v. Taylor, 475 F.3d 65 (2nd Cir. 2007).
2 U.S. v. Jacobson, 503 U.S. 540 (1992).
3 Sherman v. U.S., 356 U.S. 369 (1958); U.S. v. Gendron, 18 F. 3d 955 (1st Cir. 1994); and U.S. v. Luisi, 482 F. 3d 43 (1st Cir. 2007).
4 As of 2011, the following 14 states still follow the “objective” standard for the entrapment defense: Alaska, Arkansas, California, Colorado, Hawaii, Iowa, Kansas, Michigan, New York, North Dakota, Pennsylvania, Texas, Utah and Vermont.
5 390 Mich. 7 (1973).
6 390 Mich. 7 (1973).
7 287 U.S. 435 (1932).
8 Sorrells v. United States, 287 U.S. at 438.
9 U.S. v. Mendoza-Salgado, 964 F. 2d. 993 (10th Cir. 1992).
10 411 U.S. 423 (1973).
11 United States v. Russell, 411 U.S. at 435-436.
12 Russell, 411 U.S. at 436.
13 In Russell, the Supreme Court raised the possibility that even in a case where predisposition exists, a constitutional challenge based on the Due Process Clause of the Constitution (U.S. Const., Amendment V) still may exist based on the outrageous nature of the government’s conduct. The Supreme Court stated, “We may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.” Russell, 411 U.S. at 431-432. The Due Process outrageous-government-conduct challenge presents a small opportunity to challenge the government’s actions based on the egregious nature of the government’s investigative efforts. See, for example, U.S. v. Twigg, 588 F. 2d 373 (3rd Cir. 1978) where the government initiated the criminal activity, coerced individuals to engage in it, and provided all the means to carry it out.
14 503 U.S. 540 (1992).
15 Specifically, Title 18, U.S. Code § 2252(a)(2)(A).
16 Jacobson, 503 U.S. at 542.
17 U.S. v. Ortiz, 804 F.2d 1161,1165 (10th Cir. 1986) (predisposition explores whether defendant was “ready and willing to commit the crime” when approached by law enforcement).
18 641 F. 3d 773 (7th Cir. 2011).
19 U.S. v. Swiatek, 819 F. 2d 721, 728 (7th Cir. 1987).
20 Swiatek, 819 F. 2d at 728.